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81 Fordham L. Rev. 1835 (2012-2013)
Warning: Shifting Liability to Manufacturers of Brand-Name Medicines When the Harm Was Allegedly Caused by Generic Drugs Has Severe Side Effects

handle is hein.journals/flr81 and id is 1879 raw text is: WARNING: SHIFTING LIABILITY TO MANUFACTURERS OF BRAND-NAME MEDICINES WHEN THE HARM WAS ALLEGEDLY CAUSED BY GENERIC DRUGS HAS SEVERE SIDE EFFECTS Victor E. Schwartz,* Phil Goldberg** & Cary Silverman*** Can a product manufacturer be subject to liability for a competitor's product? American tort law has always said, No. It does not matter if the products are identical. Companies are not to be their competitors' keepers. Nevertheless, over the past few years, three courts have overturned this fundamental of tort law, holding that a manufacturer of a brand-name prescription drug can be subject to liability even when a plaintiff alleges that he or she was harmed by a generic drug made by the brand-name manufacturer's competitor. Most courts, including four federal courts of appeal and dozens of federal district and state trial courts, have rejected this expansion of tort law. This debate has intensified since 2011, when the Supreme Court of the United States held that all duty to warn claims against manufacturers of generic drugs are preempted by federal drug. The personal injury bar is * Victor E. Schwartz is chairman of the Public Policy Group in the Washington, D.C. office of the law firm Shook, Hardy & Bacon L.L.P. He coauthors the most widely used torts casebook in the United States, Prosser, Wade & Schwartz's Torts (12th ed. 2010). He has served on the Advisory Committees of the American Law Institute's Restatement of the Law Torts, Third: Products Liability, Apportionment of Liability, General Principles, Liability for Physical and Emotional Harm projects. Mr. Schwartz received his B.A. summa cum laude from Boston University and his J.D. magna cum laude from Columbia University. ** Phil Goldberg is a partner in the Public Policy Group in the Washington, D.C. office of Shook, Hardy & Bacon L.L.P. He has served as an aide to several Democratic members of Congress. Mr. Goldberg received his B.A. cum laude from Tufts University and his J.D. from The George Washington University School of Law, where he was a member of the Order of the Coif. In 2012, Mr. Goldberg was selected for membership in the American Law Institute. *** Cary Silverman is Of Counsel in the law firm of Shook, Hardy & Bacon L.L.P. in Washington, D.C. He received a B.S. in Management Science from the State University of New York College at Geneseo, and an M.P.A. and a J.D. with honors from The George Washington University Law School. The views expressed in this article are solely those of the authors. As with many major law firms, Shook Hardy & Bacon L.L.P. represents parties in litigation that may be affected by cases discussed in this Article. This Article is dedicated to the memory of Ralph Willard Johnson III, a distinguished Fordham Law Graduate, class of 1993, whose professionalism and kindness were a tribute to his school. 1835

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